Eskom Holdings Limited v Nigrini N.O. (4338/2015) [2016] ZAFSHC 27 (25 February 2016)

Eskom Holdings Limited v Nigrini N.O. (4338/2015) [2016] ZAFSHC 27 (25 February 2016)

The court found that Eskom provided a reasonable explanation for its default, supported by admissible confirmatory affidavits. The affidavits commissioned by an Eskom employee were not prohibited under the relevant statutory and regulatory provisions, as the commissioner was not an attorney and acted only in the course of employment. Eskom set out averments which, if established at trial, would constitute a defence of absence of negligence and challenged the quantum of damages. The requirements for rescission were met. The trust, having received payment under a judgment now rescinded, must restore the amount to Eskom, as it has no right to retain the funds until liability is established....

Citation
[2016] ZAFSHC 27
Parties
Applicant: Eskom Holdings Limited; Respondent: Christiaan Frederick Marthinus Nigrini N.O.
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
25 February 2016
Case Number
4338/2015
Procedural Posture
Rescission Application / Application for Rescission of Default Judgment
Outcome
Application for rescission of default judgment granted; writ of execution and notices of attachment set aside; respondent ordered to repay amount received; applicant to pay costs.
Judges
C. H. G. van der Merwe
Legal Topics
Rescission of Default Judgment, Negligence, Admissibility of Affidavits, Quantification of Damages
Civil Procedure Delict Rescission of Default Judgment Negligence Admissibility of Affidavits Quantification of Damages

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Parties

Eskom Holdings Limited

Applicant

Christiaan Frederick Marthinus Nigrini N.O.

Respondent

Procedural Posture

Rescission Application / Application for Rescission of Default Judgment

Legal Issues

  1. 1 Whether Eskom has shown good cause for rescission of the default judgment.
  2. 2 Whether Eskom provided a reasonable explanation for its default.
  3. 3 Whether Eskom has a bona fide defence to the trust's claim.

Ratio Decidendi

The court found that Eskom provided a reasonable explanation for its default, supported by admissible confirmatory affidavits. The affidavits commissioned by an Eskom employee were not prohibited under the relevant statutory and regulatory provisions, as the commissioner was not an attorney and acted only in the course of employment. Eskom set out averments which, if established at trial, would constitute a defence of absence of negligence and challenged the quantum of damages. The requirements for rescission were met. The trust, having received payment under a judgment now rescinded, must restore the amount to Eskom, as it has no right to retain the funds until liability is established....

Court Disposition

Application for rescission of default judgment granted; writ of execution and notices of attachment set aside; respondent ordered to repay amount received; applicant to pay costs.

Orders

  • The default judgment granted in favour of the respondent on 22 October 2015 is rescinded.
  • The writ of execution issued in favour of the respondent on 22 October 2015 is set aside.